ORDER
Jyoti Balasundaram, Vice-President
1. We have heard both sides on the application for waiver of Service Tax of Rs. 6,57,492/- + 2,12,393/-(total Rs. 8,69,885/-) and penalty of Rs. 500/- under Section 75A, Rs. 200/- per day under Section 76 and Rs. 1000/- under Section 77 and Rs. 13,14,984/- and Rs. 4,24,786 under Section 78 of the Finance Act,1994. The period of dispute is from April 2001 to March 2004. The demand has been confirmed on the ground that the applicants herein had rendered services as ‘Clearing and Forwarding Agent’.
2. We find that no strong prima facie case for total waiver has been made out by the applicants, in the light of the Tribunal’s decision in Super Poly Fabriks Ltd. v. C.C.E., Ludhiana 2006 (4) S.T.R. 595 in which the Bench has distinguished the Larger Bench decision in the case of Larsen & Toubro Ltd. v. Commissioner 2006 (3) S.T.R. 321 which Larger Bench decision is relied upon by the applicants before us to support their contention that the decision in the case of Prabhat Zarda relied upon by the Commissioner has been overruled. Prima facie, the decision on C.C.E., Allahabad v. Chandan Chemicals 2007 (7) S.T.R. 578 (Tribunal) : 2007 (TIOL) 724 relied upon by the applicants and in which the Super Poly Fabriks decision was distinguished, is distinguishable on facts from the present case, as in the case of Chandan Chemicals the goods were delivered by the manufacturer M/s. Hindustan Lever Ltd. to the commission agent for clearance, storage in godown and further sales at prices indicated by the manufacturer while in the Super Poly Fabriks as in the case of clearance of goods by the commission agent in the present case was from the factory of manufacturer onwards. In these circumstances, we direct pre-deposit of Rs. 2 lakhs (Rupees Two lakhs only) within a period of eight weeks from today and on such deposit, pre-deposit of the balance service tax and penalties shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without further notice.
Compliance is to be reported on 28-9-2007.